2021
Statelessness & Citizenship Review
3(1)
subjected violated these rights, which are provided for in arts 77 and 66 of the
Constitution of Ecuador. 39
Finally, the Court ruled that the arbitrary detention of the plaintiff disregarded
his right to migrate, considering that ‘detentions of persons based on their
migratory status, regardless of the place of detention, whether in airports, transit
zones or ‟international” zones, are practices that promote the criminalisation of
migration’, 40 under art 40 of the Constitution of Ecuador, art 16 of the CRMW 41
and art 7 of the ACHR. 42
REASONING
The ruling handed down by the Constitutional Court of Ecuador in JP has no
precedent in the Ecuadorian legal system. It also has no precedent in the domestic
legal systems of the region in terms of the right to nationality, statelessness, limits
of the discretionary power of the state in cases of revocation of nationality by
naturalisation and minimum guarantees of due process to avoid arbitrary
deprivation of nationality.
In addition, the Constitutional Court established clear guidelines on the
following issues:
(a) Characteristics of the notification of decisions in proceedings for
revocation of nationality or with revocation effects. 43
(b) Limits to the detention of migrants in transit or in international zones at
airports, in accordance with the duration of detention, as a guarantee to
avoid arbitrariness. 44
(c) Adequacy of the mechanism of the action for protection for the defence
of the constitutional rights of persons in a situation of human mobility. 45
Each of the parameters indicated by the Constitutional Court of Ecuador is
based on the human rights norms and principles of the Inter-American system. The
judgment supports, through jurisprudence, compliance with the standards of
protection being binding on the countries of the region. It is clear from the
characteristics of the judgment that it is binding as a constitutional precedent, with
erga omnes effects established by the Court itself in future analogous cases.
CONCLUSION
Although the Constitutional Court of Ecuador has made other pronouncements
related to the right to nationality in cases of birth registration of children of samesex couples, 46 or persons recognised as refugees, 47 the ruling discussed is a unique
decision and without any precedent concerning the issues addressed.
As such, it is likely to have an important impact on the Ecuadorian legal system
for future judicial and regulatory developments. In particular, the regulations that
the Executive is advancing in the recently issued Organic Law Reforming the
39
40
41
42
43
44
45
46
47
ibid 24 [116].
ibid 26 [125] [tr author].
CRMW (n 1) art 16.
ACHR (n 1) art 7.
JP (n 5) 29 [143(a)–(b)].
ibid 22 [110].
ibid 28 [135].
Case No 184-18-SEP-CC (29 May 2018) (Constitutional Court of Ecuador).
JP (n 5).
6